Marmara, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1998

325 N.L.R.B. 73 (N.L.R.B. 1998)

1
325 NLRB No. 73
1 In its answer, the Respondent states that it is engaged in the busi-
ness of international freight forwarding services, and denies the fore-
going description set forth in the complaint to the extent it states
otherwise. However, the Respondent stipulated in the representation
proceeding to the description of its business set forth in the com-
plaint.
2 Although the Respondent denies the appropriateness of the unit
in its answer to the complaint, it stipulated to that unit in the rep-
resentation proceeding. Accordingly, it is precluded from litigating
the appropriateness of the unit in the instant refusal-to-bargain pro-
ceeding. See Wintz Distribution Co., 317 NLRB 284 (1995).
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er-
rors so that corrections can be included in the bound volumes.
Marmara, Inc. and Teamsters Local Union 408,
International Brotherhood of Teamsters, AFL–
CIO. Case 22–CA–22430
March 19, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND BRAME
Pursuant to a charge filed on December 12, 1997,
the General Counsel of the National Labor Relations
Board issued a complaint on January 14, 1998, alleg-
ing that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act by refus-
ing the Union’s request to bargain following the
Union’s certification in Case 22–RC–11397. (Official
notice is taken of the ‘‘record’’ in the representation
proceeding as defined in the Board’s Rules and Regu-
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The Respondent filed an an-
swer admitting in part and denying in part the allega-
tions in the complaint.
On February 17, 1998, the General Counsel filed a
Motion for Summary Judgment. On February 19, 1998,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. On February 20 and March
6, 1998, the Respondent filed responses to the motion
and notice to show cause.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer and responses the Respondent admits
its refusal to bargain, but attacks the validity of the
certification on the basis of the Board’s disposition of
certain challenged ballots in the representation pro-
ceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a New Jersey
corporation, with an office and place of business in
Carteret, New Jersey, has been engaged in the sale and
provision of cargo transportation services.1 During the
12-month period ending May 15, 1997, the Respond-
ent, in conducting its business operations described
above, derived gross revenue in excess of $50,000
from the sale and provision of its services directly to
customers located outside the State of New Jersey. We
find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held June 13, 1997, the
Union was certified on November 6, 1997, as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:2
All full-time and regular part-time warehouse em-
ployees, forklift operators and office clerical em-
ployees employed by the Employer at its Carteret,
New Jersey facility, but excluding all sales em-
ployees, managerial employees, guards and super-
visors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since December 11, 1997, the Respondent has re-
fused to recognize and bargain with the Union as the
exclusive bargaining representative of the unit. We
find that this refusal constitutes an unlawful refusal to
bargain in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By refusing on and after December 11, 1997, to bar-
gain with the Union as the exclusive collective-bar-
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
gaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent begins to bargain in good faith with the
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962);
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Marmara, Inc., Carteret, New Jersey, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Teamsters Local Union
408, International Brotherhood of Teamsters, AFL–
CIO, as the exclusive bargaining representative of the
employees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time warehouse em-
ployees, forklift operators and office clerical em-
ployees employed by the Employer at its Carteret,
New Jersey facility, but excluding all sales em-
ployees, managerial employees, guards and super-
visors as defined in the Act.
(b) Within 14 days after service by the Region, post
at its facility in Carteret, New Jersey, copies of the at-
tached notice marked ‘‘Appendix.’’3 Copies of the no-
tice, on forms provided by the Regional Director for
Region 22 after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since December 11, 1997.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. March 19, 1998
llllllllllllllllll
William B. Gould IV, Chairman
llllllllllllllllll
Sarah M. Fox, Member
llllllllllllllllll
J. Robert Brame III, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Teamsters
Local Union 408, International Brotherhood of Team-
sters, AFL–CIO, as the exclusive representative of the
employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
3MARMARA, INC.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full-time and regular part-time warehouse em-
ployees, forklift operators and office clerical em-
ployees employed by us at our Carteret, New Jer-
sey facility, but excluding all sales employees,
managerial employees, guards and supervisors as
defined in the Act.
MARMARA, INC.